Citation Nr: 0838377
Decision Date: 11/06/08 Archive Date: 11/18/08
DOCKET NO. 07-17 048 ) DATE
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On appeal from the
Department of Veterans Affairs Medical Center in Canandaigua,
New York
THE ISSUE
Entitlement to payment or reimbursement for private medical
services the veteran received from Lewis County General
Hospital (LCGH) on August 23, 2006.
REPRESENTATION
Appellant represented by: Lewis County Veteran's Service
Agency
ATTORNEY FOR THE BOARD
Dan Brook, Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from May
1967 to May 1970 and from November 1990 to July 1991. This
matter comes before the Board of Veterans' Appeals (Board) on
appeal from a January 2007 decision of the Canandaigua VA
Medical Center (VAMC).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The record shows that the veteran apparently went to the
LCGH emergency room for treatment on August 23, 2006. He
subsequently filed a claim for VA payment or reimbursement
for the costs associated with this treatment. In the
January 2007 decision the VAMC found that the veteran had
other health care coverage, which could pay all or part of
the expenses incurred. Later in January 2007 the veteran's
representative submitted a statement from the veteran's
private insurer, POMCO, indicating that services provided by
LCGH on August 23, 2006, were not covered at all by POMCO.
In a subsequent March 2007 statement of the case, the VAMC
indicated that the veteran did have emergency room coverage
under his health insurance policy with POMCO and that he was
seen at LCGH for emergency dental treatment. Consequently,
the VAMC determined that the veteran needed to submit a
written request to POMCO asking for them to review his claim
for coverage and issue an explanation of his coverage. The
veteran's representative then filed a Form 9 in April 2007,
indicating that POMCO would still not cover the August 23,
2006, LCGH treatment.
Under 38 C.F.R. § 17.1002(g), one of the requirements for
payment or reimbursement for private emergency medical
services is that the veteran has no coverage under a health-
plan contract for payment or reimbursement, in whole or in
part, for such emergency treatment. Also, the regulation
indicates that this condition cannot be met if the veteran
has coverage under a health-plan contract but payment is
barred because of a failure by the veteran or provider to
comply with the provisions of that health-plan contract. Id.
The regulation than goes on to indicate that failure to
exhaust appeals of the denial of payment could be an example
of failure to comply with the provisions of the health care
plan contract. Id.
The Board notes that 38 C.F.R. § 17.1002(g) should not be
read to require a veteran to file an appeal of a denial of
payment of medical services by his private health insurer
when it is clear under the insurance policy that such
services are not covered. The Board also notes that although
it appears that the VAMC may have clarified that the
veteran's POMCO policy included coverage for general
emergency medical treatment, it does not appear that they
specifically clarified whether the policy included any
coverage for emergency dental treatment. Thus, on remand, the
VAMC should make this clarification. If it is clarified that
the policy did not provide this coverage, the veteran can be
deemed to be in compliance with 38 C.F.R. § 17.1002(g).
If, after clarification of the veteran's POMCO coverage, the
veteran's claim still remains denied, the RO should ensure
that the veteran's VA medical reimbursement claims file
includes complete records of the emergency dental treatment
he received at LCGH on August 23, 2006, and all the pertinent
documentation pertaining to whether the veteran's POMCO
health insurance policy included any coverage for emergency
dental treatment.
Accordingly, the case is REMANDED for the following action:
1. The VAMC should clarify whether the
veteran's POMCO health insurance policy
included any coverage for emergency
dental treatment (such as the treatment
the veteran received from LCGH) as of
August 23, 2006. If it is necessary for
the VAMC to contact POMCO directly to
make such clarification, the VAMC should
do so after securing an appropriate
release from the veteran.
2. The VAMC should then readjudicate the
claim. If it remains denied, the VAMC
should ensure that the veteran's VA
medical reimbursement claims file
includes complete records of the
emergency dental treatment he received at
LCGH on August 23, 2006, and all
documentation pertaining to whether the
veteran's POMCO health insurance policy
included any coverage for emergency
dental treatment as of August 23, 2006.
The VAMC should then issue an appropriate
supplemental statement of the case and
provide the veteran and his
representative the opportunity to
respond. The case should then be
returned to the Board for further
appellate review, if otherwise in order.
No action is required of the appellant
until he is notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).